D runs library where it has photocopy service for members, both run by employees and self-serve. P is a collection of publishers who say their copyright is infringed by this program. P published court decisions with summaries and index.
(1) Did P have copyright?
(2) If so, were copies fair use?
(1) In order for a work to have copyright it must be created through the use of skill and judgement.
(2) A copyrighted work may be used fairly so long as: the purpose, character, and amount of the use is fair.
-There was no non-copyrighted alternative
-There is a public interest in the work being copied
-There is a limited or no effect on the market for the work.
Copyright Act to protect expression of ideas not ideas in themselves (Moreau v St Vincent)
-Consequently, works must be original in their expression not in their idea. This means involving the exercise of skill and judgement
--Skill: knowledge, developed aptitude or practiced ability
--Judgement: Use of one's discernment capacity to weigh different options in producing the work.
-This understanding of "originality" is justified by the plain meaning, jurisprudence, and legislative history.
Goal of Copyright Act: to balance public interest in dissemination of work with fair reward to creator and recognizing creator's rights with their limits (Theberge)
-Copyright Act 3(1) Sole right to produce or reproduce the work or any substantial part thereof in material form
Application: Headnotes, index, and summaries required skill and judgement.
-It's not necessarily the components but the overall arrangement that needs to be original (Slumber Magic Adjustable Bed)
-Providing copy machines is insufficient to show violation of copyright. In absence of more evidence, sanction should be presumed to be for legal activity.
(2)-Copyright 29.2 Those who deal fairly with a work for the purpose of research, private study, criticism, review or news reporting do not infringe copyright
-Fair use is not an exception but a fundamental part of copyright, so should not be read restrictively.
Must meet 2 steps:
1. For purpose of research or private study: research should have liberal interpretation and includes for-profit research
-The LSUC's policy was limited in its purposes, and when talking about dealing it is more about general practice then individual acts.
--Furthermore, the service is integral to the conducting of research in Ontario
a. Purpose: research, private study, review, critique, news reporting
-Policy requires users to specify purpose
b. Character: not widely distributed, destroyed after use, in line with norms of industry
-Single copies of work at a time
c. Amount: relative to purpose, in some case one can fairly deal with whole work (e.g. photo)
-Limited requests to 1 case,statute, etc. Investigated cases over 5%, no evidence of multiple requests.
d. Alternatives: If non-copyrighted equivalent exists it should be used
-Not reasonable to expect people to come in from out of town for single cases, and to stay there to do research.
e. Nature: is it unpublished (in which case dissemination is good)? Or confidential (in which case dissemination is bad)
- It is in public interest that lawyers should have access to cases.
f. Effect: Not market competition.
-No evidence was given of impact on market.
D won. Appeal dismissed.